The Great Disconnect

June 24, 2012

One of the greatest changes in modern medicine is the patient safety movement. It is difficult to date the genesis for this approach to medicine, but the George Washington, of sorts, was Lucian Leape, M.D. Prior to joining the faculty at Harvard in 1988, Lucian Leape was Professor of Surgery and Chief of Pediatric Surgery at Tulsa University School of Medicine and the New England Medical Center. Many say the patient safety movement began with Dr. Leape's article, "Error in Medicine," published in the Journal of the American Medical Association in 1994.

A number of major corporations who pay big health insurance bills came to the realization that the best way to reduce those bills was by making the delivery of medicine safer. Medical and hospital expenses are high for a number of reasons, but the two leading causes are the costs of pharmaceutical and medical devices and the amount of money that has to be spent on a patient who suffers bad medical care.

For example, the cost of treating hospital-acquired infections alone is so high that a reduction in hospital-acquired infections to zero, which is theoretically possible, would solve the problem of high health insurance premiums in this country.

When a patient acquires a MRSA or staph infection because the doctor has not properly scrubbed or because a nurse has not washed her hands, the cost of sophisticated antibiotics and hospital care is astronomical.

Pennsylvania was the first state to create a Patient Safety Authority. If Lucian Leape was the Moses of the patient safety movement, then the 1999 Institute of Medicine study, "To Err is Human; Building a Better Health Care System" was the Bible. The IOM study recommended the creation of a national patient safety authority, which never occurred.

However, Pennsylvania did create such an authority in 2002. Trial lawyers demanded that if additional barriers were going to be created limiting medical liability claims, at the very least safety in hospitals ought to be a priority.

The message of the apostles of patient safety was that non-punitive measures will prevent needless medical errors. Mistakes are said not to be due to human error but rather are "systemic." The new paradigm was to shift patient safety away from disincentivising bad care in favor of creating better institutions. The theory goes that if people who deliver health care services are well trained, properly coordinated, and are not financially responsible for their behavior, better care will be rendered.

This all sounded good, but it is counter to human nature and it treats medical health care providers as cogs in a well-oiled machine. The truth is that medical care is delivered by real people, some of whom are incredibly dedicated and others of whom only see dollar signs. Some of those who work in medical offices and hospitals have only the best interests of their patients in mind and would not hurt a fly, while others believe they sit at the right hand of G-d.

Whenever I speak to groups I ask for a showing of hands as to how many medical malpractice cases have been filed in Pennsylvania in the last year. In the last 10 years that I have done this, no one has come close to the real average number.

That number currently is approximately 1,500 per year. In that same year, the Pennsylvania Patient Safety Authority received 230,000 reports of incidents (no patient harm) and serious events (patient harmed). Therefore it is quite evident that only one half of one percent filed a claim in Pennsylvania who have been subject to incidents or serious events.

The question is often posed as to why the focus has to be on individual practitioners rather than systemic failures. If money is properly to be paid for harm caused to patients because of neglect, why not hold the institution responsible which has failed to create an environment of safety?

In a recent case, I discovered that a hospital failed properly to maintain its x-rays or to properly teach and drill its doctors and nurses on the simple and common art of resuscitation. As a result of this, a salvageable baby, who had pneumonia but whose organs were otherwise in good shape, died shortly after birth. Why not hold a hospital responsible for the failure to train, rather than a doctor who may incompetently handle the resuscitation? The answer is one of philosophy, but also one of law.

There is, in the medical liability sphere, a total disconnect between the goals of patient safety established by private industry and organizations like the Patient Safety Authority with the lack of transparency which the law protects. While the medical community is passionate about its right to hide mistakes under heaps of laws creating artificial immunities, nondisclosure and secret committee meetings, patients still struggle to secure a safe hospital environment.

Doctors often write emotional letters to the editor and appear at legislative hearings, decrying the stress of litigation in connection with medical liability claims. Yet, those same doctors, through their insurance companies and hospitals, frequently turn their backs on mediation, arbitration and other less painful ways of judging the adequacy of medical care. Even worse, those doctors and hospitals could avoid painful trials in court if peer review and hospital machinations were no longer hidden from the public.

Mushrooms and other poisonous things grow in damp, dark, dirty places. If consumers had a true report card on hospitals, just like Consumer Reports does for cars, people could know where to shop. The hospitals that support patient safety and punished wrongdoers, would have more business. There is very little incentive in the current system for hospitals or doctors to be safe, where there is much more often than not no slap on the wrist and no cop on the beat.

The great disconnect is that doctors celebrate organizations and laws which are "non-punitive," meaning that one may receive an education when bad medical care is provided, but a curtain of secrecy then descends.

In the legal system, accountability and responsibility rule the day, with the negligent party making whole those who have been harmed. These two systems should not be in conflict. Where an incident occurs that does not harm a patient, private reprimands and teaching opportunities are appropriate.

However, it is counterproductive to protect institutions that provide bad care because sooner or later it will lead to serious patient harm.

Under our system of laws, as old as the Bible itself, remuneration to those harmed by neglect serves both the individual interest and encourages safer institutional behavior.

Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority.